Lim Ek Kian v Public Prosecutor
| Jurisdiction | Singapore |
| Judge | Kow Keng Siong |
| Judgment Date | 27 December 2002 |
| Neutral Citation | [2002] SGDC 331 |
| Year | 2002 |
| Published date | 14 August 2007 |
| Citation | [2002] SGDC 331 |
| Court | District Court (Singapore) |
THE CHARGE & THE APPEAL
1. This is an appeal against conviction and sentence.
2. The Appellant, Mr Lim Ek Kian, was originally tried under section 420 of the Penal Code (P1A). In the course of the Prosecution’s case, the charge was amended to one under section 468 of the Penal Code (P1B). This charge alleged that on or about 23rd January 2002, the Appellant forged an ‘Application for Transfer of PARF and / or COE Rebate’ form for the purpose of cheating Ms Toh Lay Teng of the Land Transport Authority (LTA) into issuing a certificate for the transfer of rebates (amounting to $9,237) from one Evelyn Lai Sow Eng to Jason Lee Kee Leon.
3. At the end of the trial, I convicted the Appellant on the amended charge P1B and sentenced him to 12 months’ imprisonment.
UNDISPUTED FACTS
4. At all material times, the Appellant was the managing director of JTA Motors Pte Ltd, the sole distributor of SKODA cars.
5. On 22 January 2002, Ms Evelyn Lai entered into an agreement with JTA to purchase a SKODA car for $69,700, inclusive of a Certificate of Entitlement (COE): P7. At all material times, she was attended to by Mr Trevor Koh, a JTA’s salesman. Lai did not communicate with the Appellant at all, either before, or during the entering of the purchase agreement.
6. Under the agreement, Lai was to make a down-payment of 30% of the purchase price. This amounted to $20,910. To satisfy this term of the agreement, Lai:
a. Made a credit card payment of $4,000 in favour of JTA on 22 January 2002;
b. Deposited her PARF / COE rebates certificate (P6) amounting to $9,237 with JTA on 22 January 2002; and
c. Issued a cheque for $8,078 in favour of JTA a few days after 22 January 2002.
7. To process the necessary paper work with LTA, Lai handed over to Trevor, together with her PARF / COE certificate (P6),
a. a LTA ‘Application for Transfer of PARF and / or COE Rebates’ form (P8) which she signed at the transferee portion only; and
b. her identity card.
8. After concluding the agreement, Trevor later left all the relevant documents, including P8, with the Appellant in the evening of 22 January 2002.
9. That same evening, when the Appellant was perusing Lai’s documents, he noticed that Lai had signed on the transferee portion instead of the transferor portion of P8. The Appellant took a fresh application form and entered therein:
a. Lai’s false signature in the transferor portion, and
b. Jason Lee Kee Leon’s false signature in the transferee portion.
The Appellant also inserted the particulars of these 2 persons in this fresh form (P3). The Appellant did all these without the knowledge of Lai, Lee and Trevor.
10. The next day (ie 23 January 2002), the Appellant presented P3 along with other documents to the LTA for the purpose of effecting a transfer of PARF / COE rebates from Lai to Lee. Pursuant to P3, LTA (a) processed the transfer of PARF / COE rebates (totaling $9,237); and (b) generated letters P4 and P5 to notify Lai and Lee of the transfer. P5 was posted directly to Lai while P4 was given to the Appellant on the same day.
11. The Appellant did not personally obtain the consent of either Lai or Lee before falsifying their signatures in P3 and submitting it to LTA. Neither did Lai or Lee at any time vest JTA or any of its agents the authority to make their purported signatures on a LTA ‘Application for Transfer of PARF and / or COE rebate’ form and submit it on their behalf.
ISSUES AT THE TRIAL
12. It was the Prosecution’s case that
a. Firstly, when Lai signed P8, she had intended her PARF / COE rebates be used solely in her own name for the purchase of her new car;
b. Secondly, the Appellant knew of Lai’s intention at the time when he prepared P3;
c. Finally, LTA would not have transferred Lai’s rebates to Lee had it known that neither of them had signed on P3.
13. The Defence disputed these aspects of the Prosecution’s case. Additionally, it was argued that the Prosecution had failed to prove essential ingredients of the charge under section 468 in that
a. The Appellant did not act with a dishonest or fraudulent intent at all material times, and
b. The ‘victim’ in this case, LTA officer Toh Lay Eng, did not suffer, or was likely to suffer, damage or harm in body, mind, reputation or property as a result of processing the transfer pursuant to P3.
PROSECUTION’S EVIDENCE
Evelyn Lai
14. According to Lai, when she entered into an agreement to buy a SKODA car on 22 January 2002, she had specifically informed Trevor to transfer the entire value of her rebates (ie $9,237) in P6 to her new vehicle. She insisted on this because of her understanding (based on para 2 of P6) that the rebates could only be used to offset the registration fees for a new car bought in her own name. Pursuant to her instructions, Trevor gave her an ‘Application for Transfer of PARF and/or COE Rebates’ form and requested that she sign as ‘transferee’ therein, which she did. Due to an oversight however, only $8,832 was quoted in the Vehicle Order Agreement (P6) instead of the full value of the rebates ($9,237). The difference of $405 related to the COE rebate which was inadvertently overlooked.
15. Lai testified that a few days after handing over her PARF / COE certificate to Trevor, she received a LTA notification letter (P5) and was surprised to find that her PARF / COE rebates had been transferred to an unknown 3rd party. When Lai questioned Trevor about P5 a few days later, the latter claimed that he was not aware of the transfer as all the paper work were handled by his admin office. Trevor however assured Lai that JTA had obtained a COE for her. Thinking that her rebates had been transferred away because of her new car’s COE, Lai did not suspect anything further.
16. However, when a colleague later warned her of rumours that SKODA customers could not get their cars, Lai called Trevor to check on the delivery date for her car. Trevor informed that due to a shipment delay, her new car would probably arrive in April. He again reassured her that she need not worry as her COE was guaranteed. Trevor also suggested that she could send an email to the Appellant for a confirmation of the delivery date, if she wanted to.
17. Unfortunately for Lai, due to the termination of JTA’s SKODA distributorship agreement, she was unable to obtain her SKODA car. She eventually lodged complaints with the police on 9 April 2002 (P9) and with the LTA on 15 April 2002. As a result of the non-fulfilment of the contract, Lai lost a significant part of her down-payment, comprising of $8078 (cheque payment) and $9,237 (PARF / COE rebates in P6).
Trevor Koh
18. Trevor corroborated Lai’s evidence in several material aspects. Firstly, he testified that Lai had clearly stated at the time of the agreement that her rebates in P6 was to be used to offset the registration of her new car. Pursuant to her instructions, Trevor told Lai to sign on P8 at the ‘transferee’ portion. He told her to do this as at the material time, he was not familiar with the LTA procedures and he wanted to ‘play safe’.
19. Secondly, Trevor confirmed that Lai’s COE rebates of $405 in P6 was overlooked at the time of transaction. According to Trevor, when Lai told him that the value of her rebate was only $8832, he had assumed that this was so. Trevor did not realize that there was another $405 stated at the bottom of P6. He agreed with Lai’s evidence that the COE rebate was not intended to be discounted in the purchasing of Lai’s new car.
20. According to Trevor, he showed the Appellant P6 to P8 and told him of Lai’s intention regarding the use of her rebates soon after closing the deal with her. In response, the Appellant merely told him to collect Lai’s identity card. Trevor denied Counsel’s suggestion that he had requested the Appellant to transfer Lai’s rebates in P6 to Jason Lee by 23/1/2002.
21. Finally, Trevor confirmed that Lai first complained to him about the transfer of her rebates very soon after signing the contract, about a week later. He evaded giving her an explanation by stating that he would check up the matter and assured her that her COE bid was successful.
22. According to Trevor, the Appellant did not raise the issue with the signature on Lai’s rebates transfer form until more than a month after the sale. On that occasion, the Appellant informed that he had asked Lai to sign on the wrong portion of the transfer form. Trevor responded by stating that the customer had wanted the rebates for her own use.
Toh Lay Eng
23. Toh Lay Eng testified that before processing an application to transfer PARF & COE rebates, LTA required the requisite application form to be duly completed and both transferor and transferee to sign therein. There was no requirement however for them to be present at the LTA for the application. If they were absent, LTA would simply verify the particulars on the application form with their respective identity cards.
24. According to Toh, she would not have transferred Lai’s PARF / COE rebates to Lee had she known that both of them did not sign on P3. Toh testified that as the beneficiary of the rebates, Lai’s consent was required before LTA would process the transfer, and that Lai was the only person who could authorise the transfer.
25. Toh added that she would not process an application form where Lai had signed as transferee and wanted her PARF/COE rebates to be retained for the registration of a new car. This was because there was no need to effect any transfer under such circumstances.
THE DEFENCE
26. After considering the applicable principles in Haw Tua Tau v PP
27. The Appellant testified that on 22 January 2002, Trevor informed him that Lai had bought a car from him. Trevor requested him to transfer her PARF / COE rebates to another of his (Trevor’s) customer, Jason Lee. Thereafter, Trevor left him with Lai’s PARF / COE certificate (P6), Vehicle Order...
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